Case 3:16-cv-00743-SB

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Per A. Ramfjord, OSB No. 934024

per.ramfjord@stoel.com
Kennon Scott, OSB No. 144280
kennon.scott@stoel.com
STOEL RIVES LLP
760 SW Ninth Avenue, Suite 3000
Portland, OR 97205
Telephone: (503) 224-3380
Facsimile: (503) 220-2480

Attorneys for PlaintiffNike, Inc.

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON
PORTLAND DIVISION

NIKE USA, INC., an Oregon corporation,

Case No. 3:16-cv-00743-SB

Plaintiff,
SECOND DECLARATION OF BEN
CESAR

v.

BORIS BERIAN, an individual California

resident,
Defendant.

I, Ben Cesar, hereby declare as follows:

1.

I am currently North America Track and Field Athlete Manager for Nike, Inc.

Nike, Inc.'s global sports marketing organization is responsible for seeking, building and
establishing formal relationships with sports federations, professional sports leagues and elite
professional athletes worldwide, primarily through negotiating endorsement and licensing
agreements with professional athletes and sports properties. I submit this declaration in support
ofNike USA, Inc.'s ("Nike") Motion for Preliminary Injunction. The following facts are within
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my personal knowledge and, if called and sworn as a witness, I could and would testify
competently thereto.
2.

On January 22, 2016, I emailed Merhawi Keflezighi, Defendant Boris Berian's

agent, a letter from John Capriotti, Nike, Inc. Global Director of Athletics. The letter agreed to
match the offer from New Balance that Mr. Keflezighi had submitted to Nike on January 20 (the
"New Balance Offer").
3.

Mr. Capriotti's letter also asked Mr. Keflezighi to clarify whether the New

Balance Offer had purposefully excluded reductions, and, if so, invited Mr. Keflezighi to submit
written documentation on that point. However, the letter does not state that Nike's agreement to
match the New Balance Offer was conditional on the inclusion of reductions. Had we wished to
condition our commitment to match the New Balance Offer on the inclusion of reductions, we
would have said so directly. We did not do that. Instead, we unambiguously stated that Nike
"matches the New Balance Offer," and we included an attachment in which we matched the New
Balance Offer word for word. The language seeking clarification merely sought to determine
whether or not reductions were in fact included. It does not take away from the fact that Nike
was then, and is now, committed to matching the New Balance offer, regardless of whether it
includes reductions.
4.

On January 27, 2016, I had a call with Mr. Keflezighi and Mr. Capriotti to discuss

the New Balance Offer. Mr. Keflezighi highlighted the fact that the New Balance Offer included
a provision that would allow Mr. Berian to wear the official kit of the Big Bear Track Club.
Both Mr. Capriotti and I acknowledged the existence of that provision and the fact that Nike had
matched it. At the time, however, Mr. Keflezighi did not indicate that the Big Bear Track Club
was sponsored by New Balance or was going to be sponsored by New Balance. Had he done so,

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I would have raised concerns internally about whether the provision was in fact enforceable. Nor
did Mr. Keflezighi state or suggest that Nike had failed to match the New Balance Offer. At the
end of the call, Mr. Keflezighi suggested that it would be good to have an additional call with
Mr. Berian on the line.
5.

On February 2, 2016, I had a second call with Mr. Keflezighi, Mr. Berian, and

Mr. Capriotti. On that call Mr. Berian said that he had nothing against Nike, but he felt that he
did not hear from Nike as often as his fellow runner, Brenda Martinez, heard from her New
Balance sponsor. I explained that I was in regular contact with his coach, Carlos Handler, but
would be happy to connect with him directly if that was what he preferred. Mr. Berian also said
that his Nike shoes occasionally gave him issues, and I responded that I had never heard that
before and asked what we could do to improve the situation. Mr. Keflezighi then suggested that
the best thing would be to let Mr. Berian move to New Balance, which is what he would prefer
to do. At the close of the call, Mr. Berian and Mr. Keflezighi agreed that they would talk further
and get back to us. At no time during the February 2, 2016 call did Mr. Keflezighi or Mr.
Berian suggest that Nike had failed to match any terms of the New Balance Offer.
6.

Following the February 2, 2016 call, I did not hear anything further from Mr.

Berian or Mr. Keflezighi. To move things along, I sent Mr. Keflezighi a draft form contract for
his review that was intended to incorporate the terms of the New Balance Offer into a typical
sponsorship agreement. Because Mr. Keflezighi had never provided documentation from New
Balance as to whether or not New Balance intended to include reductions as part of its customary
terms, I included them in the proposed draft. This was not intended in any way as a repudiation
ofNike's commitment to match the New Balance Offer. Indeed, my cover email specifically
noted that Nike was "looking forward to continuing [its] relationship" with Mr. Berian.

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Moreover, as I previously indicated, Nike was committed to matching the New Balance Offer
regardless of whether it included reductions. In this regard, my cover email also stated that the
form contract was a draft "for [Mr. Keflezighi's] review," and I assumed that Mr. Keflezighi
would provide me with a statement from New Balance on whether or not their offer included
reductions.
7.

Rather than commenting or responding in any way to the substance of the draft

contract, Mr. Keflezighi responded in an email, noting that he and Mr. Berian had discussed the
situation internally as they had agreed to do during the February 2, 2016 call, and that Mr. Berian
"has expressed an interest not to resume a relationship with Nike." Nothing in the email states or
suggests that Nike had failed to match the New Balance Offer. Because it did not appear from
this email that Mr. Berian was willing to honor his contractual obligations to Nike, Nike retained
counsel who began further communications eventually leading to this action.
8.

Even though the parties are now involved in litigation, Nike is committed to

continuing its relationship with Mr. Berian. To that end, should the Court enter a preliminary
injunction as requested, Nike will go forward and pay Mr. Berian according to terms of the
parties agreement, as reflected in Nike's January 22, 2016 match ofthe New Balance Offer,
provided he competes in Nike apparel and footwear and refrains from endorsing any Nike
competitor, on social media or elsewhere, or otherwise taking action contrary to the terms of
Nike's January 22, 2016 match.
I declare under penalty of perjury that the foregoing is true and correct.

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Executed on June 21,2016.

Ben Cesar
North America Track & Field Athlete Manager
Nike, Inc.

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